This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

02-1582

Cir. Ct. No.01-CV-1356

STATE OF WISCONSIN

IN COURT OF
APPEALS

Ralph E. Beecher,

Plaintiff-Appellant,

v.

Labor & Industry Review
Commission, Outokumpu

Copper Kenosha, Inc. and
Fremont Indemnity Co.,

Insurer, c/o Casualty
Insurance,

Defendants-Respondents.

APPEAL
from an order of the circuit court for Kenosha County:MICHAEL
S. FISHER, Judge.Reversedand cause remanded.

Before
Nettesheim, P.J., Brown and Snyder, JJ.

¶1SNYDER, J.Ralph E.
Beecher appeals from an order dismissing his appeal of a Labor & Industry
Review Commission (LIRC) worker’s compensation decision finding that he had not
established a prima facie case for permanent total disability; LIRC instead
ruled that Beecher was permanently partially disabled.Beecher argues that there is no substantial
and credible evidence to support LIRC’s conclusion that he failed to establish
a prima facie case of permanent total disability.We agree with Beecher and reverse the order of the circuit court.

¶2Beecher was born in July 1942 and has a ninth grade
education.Beecher had worked for
Outokumpu Copper Kenosha, Inc., a foundry, for twenty-nine years in what he has
characterized as strenuous employment.As of April 7, 1997, Beecher had been working for several months on a
“Z-mill” machine. The Z-mill ran sheets of metal from one large roll of metal
to another roll or spool.The job
required Beecher to lean over the first roll of metal to pick up the sheet of
metal as it wound off the first roll, then thread the sheet of metal into a
slit on the second roll.Beecher would
wind the sheet of metal from the first roll to the second, then thread the
metal sheeting into the Z-mill machine and rewind it.The metal sheets themselves were five to eight inches wide and
approximately two inches thick; an entire roll might weigh 15,000 pounds.The job required bending over to pick up the
sheets of metal and then pulling them to thread sheets onto the rolls.

¶3Beecher developed sharp pains in his lower back, leading him
to seek medical treatment with an orthopedist, Dr. Christopher Noonan, in April
1997.The pain increased over time
until Beecher could no longer work.On
September 10, 1997, Dr. Noonan performed a third surgical procedure to
Beecher’s lower back, a discectomy, fusion and graft.A fourth surgery has been suggested to help alleviate his
condition but Beecher has not yet opted to have this procedure.

¶4Beecher returned to light-duty work in April 1998, at which
time he worked for two weeks until Outokumpu apparently ran out of light-duty
assignments for him.Since then,
Beecher has not returned to work for Outokumpu.Outokumpu has since moved its operations out of Wisconsin and did
not offer to relocate Beecher to a light-duty job at its new location.Beecher testified that if he had been
offered such a transfer, he would have accepted it.

¶5In September 1999, Beecher filed an application for a
hearing, alleging that his day-to-day work activities up to April 7, 1997,
caused progression of his pre-existing back condition, ultimately leading to
lumbar fusion surgery.Beecher sought
temporary total disability benefits from October 14, 1998, through May 14,
1999, permanent partial disability benefits on a functional basis at fifteen
percent to the body as a whole, and permanent disability on a vocational basis
for loss of earning capacity, including permanent total disability and payment
of medical expenses.

¶6On January 3, 2001, a hearing was held before an
administrative law judge (ALJ) for the Worker’s Compensation Division of the
Department of Workforce Development.Prior to the hearing, Outokumpu and its insurer, Fremont Indemnity Co.,
conceded jurisdictional facts and an average weekly wage at the statutory
maximum.In dispute before the ALJ was
whether Beecher sustained injuries arising out of his employment while performing
services incidental to or growing out of that employment and, if so, the nature
and extent of the disability and related medical expenses.In addition, both parties had entered into a
limited compromise agreement concerning certain issues.

¶7On April 5, 2001, the ALJ issued his findings of fact and
order finding a compensable injury and awarded compensation for temporary total
disability from October 14, 1998, to May 19, 1999, and for permanent total
disability thereafter.The ALJ also
awarded payment of certain medical expenses.Outokumpu filed a timely petition for LIRC review.LIRC partially reversed the decision of the
ALJ; LIRC found that Beecher had sustained a disability from an occupational
disease arising out of his employment with Outokumpu.However, LIRC also found that Beecher had not established a prima
facie case for permanent total disability but instead ruled Beecher was
permanently partially disabled.

¶9In an appeal following an administrative agency decision, we
review the decision of the agency, not that of the circuit court.Am. Mfrs. Mut. Ins. Co. v. Hernandez,
2002 WI App 76, ¶11, 252 Wis. 2d 155, 642 N.W.2d 584.We do not weigh the evidence or pass upon the credibility of the
witnesses and we must uphold LIRC’s findings of fact on appeal if they are
supported by credible and substantial evidence in the record.Id.When we review an administrative agency’s interpretation of a
statute, there are three possible levels of deference: great weight, due weight
or de novo.Id.

¶10When we afford “great weight” deference to the agency’s
interpretation, we will sustain a reasonable agency conclusion even if an
alternative conclusion is more reasonable.Id. at ¶12.We
give “great weight” deference to the agency’s interpretation when all of the
following conditions are met:(1) the
agency was charged by the legislature with the duty of administering the
statute, (2) the interpretation of the agency is one of long-standing, (3) the
agency employed its expertise or specialized knowledge in forming the
interpretation, and (4) the agency’s interpretation will provide uniformity and
consistency in the application of the statute.Id.

¶11In affording “due weight” deference to the agency’s
interpretation, we will not overturn a reasonable agency decision that comports
with the purpose of the statute unless we determine that there is a more
reasonable interpretation available. Id. at ¶13. We afford “due
weight” deference to the agency’s determination when it has some experience in
an area but has not developed the expertise that necessarily places it in a
better position than a court to make judgments regarding the interpretation of
the statute.Id.

¶12When we review an agency decision “de novo,” we give no
deference to the agency’s interpretation.Id. at ¶14.De
novo review is appropriate if any of the following is true:(1) the issue before the agency is clearly
one of first impression, (2) a legal question is presented and there is no
evidence of any special agency expertise or experience or (3) the agency’s
position on an issue has been so inconsistent that it provides no real
guidance.Id.

¶13Here, we accord LIRC’s decision great weight deference and thus
will sustain a reasonable agency conclusion even if an alternative conclusion
is more reasonable.Seeid.
at ¶12.

¶14Upon briefs, Beecher argues that there is no substantial and
credible evidence that he failed to establish a prima facie claim of permanent
total disability pursuant to Balczewski v. DILHR, 76 Wis. 2d 487,
251 N.W.2d 794 (1977).Beecher contends
that his evidence established a prima facie claim of permanent total disability
and LIRC’s reasoning does not support its contrary conclusion.Beecher relies primarily on Balczewski,
which he claims requires him to establish a prima facie case of permanent total
disability, and concludes that since the facts of the case at hand are nearly
identical to the facts of Balczewski, an identical result is
compelled.

¶15Outokumpu argues that LIRC’s findings of fact support its legal
conclusion.LIRC maintains that there
was credible and substantial evidence to support its findings on the nature and
extent of Beecher’s disability; LIRC appears to acknowledge Balczewski’s
requirement that the claimant establish a prima facie case of permanent total
disability but attempts to distinguish the facts of Balczewski
from the case at hand.

¶16However, in its brief, LIRC also implicitly argues that 4 Arthur Larson & Lex K. Larson, Larson’s
Worker’s Compensation Law § 84.01[4] (1st ed. 2001), elaborates on
the Balczewski principles and is equally applicable to
Beecher.In addition to Balczewski’s
requirement that the claimant establish a prima facie case of permanent total
disability, LIRC cites to Larson
for the concept that “it is not unreasonable to place the burden of proof on
[the] claimant to establish unavailability of work to a person in his or
circumstances ... [which] would normally require a showing that the claimant
has made reasonable efforts to secure suitable employment.”In essence, LIRC argues that the burden was
on Beecher to (1) establish a prima facie case for permanent total disability (Balczewski)
and then (2) show he made reasonable efforts to obtain suitable employment (Larson).LIRC acknowledges in its brief that it applied both the Balczewski
and Larsonprinciples to
Beecher and argues that Balczewski implicitly adopts the above Larson principle, as have numerous
cases from other jurisdictions.[3]

¶17After briefing, we ordered oral argument.At oral argument, LIRC clarified its
contention; LIRC again admitted that it had adopted and applied the Larson principle to Beecher and urged
us to adopt this second Larson
step as law.Thus, by its own
admission, LIRC applied a standard to Beecher that is not currently the law in Wisconsin.This was erroneous.

¶18The principles set forth in Larson,
as cited by LIRC for the second step Beecher must take, are not the law in
Wisconsin; Balczewski is the law and Balczewski
does not require a claimant to make a showing that he or she had made
reasonable efforts to secure suitable employment.In fact, Balczewski establishes the opposite.

¶19Balczewski held that “where nonschedule
industrial injuries were sustained, the crucial factor in establishing
permanent total disability [is] proof of the total and permanent impairment of
earning capacity.”Balczewski,
76 Wis. 2d at 492.Citing to Larson, the Balczewski court
states that “where a claimant makes a prima facie case that he has been
injured in an industrial accident and, because of his injury, age, education,
and capacity, he is unable to secure any continuing and gainful employment, the
burden of showing that the claimant is in fact employable and that jobs do
exist for the injured claimant shifts to the employer.”Balczewski, 76 Wis. 2d at 495
(emphasis added).Balczewski’s
holding is clear:

A suggested general-purpose principle on burden of
proof in this class of cases would run as follows:If the evidence of degree of obvious physical impairment, coupled
with other factors such as claimant’s mental capacity, education, training, or
age, places claimant prima facie in the odd-lot category, the burden
should be on the employer to show that some kind of suitable work is regularly
and continuously available to the claimant.Certainly in such a case it should not be enough to show that claimant
is physically capable of performing light work, and then round out the case for
noncompensability by adding a presumption that light work is available.

Id. (citing Larson, supra, §
57.61).

¶20In essence, establishing permanent total disability is a
two-step process.The first step
requires the claimant to make a prima facie case that he or she is permanently
and totally disabled.Balczewski,
76 Wis. 2d at 494-95, 497.The second
step, and the burden, then shifts to the employer to rebut that prima facie
showing and demonstrate that some kind of suitable work is regularly and
continuously available to the claimant.Id. at 497.Step
one belongs to the claimant while step two belongs to the employer.

¶21LIRC, however, parses Balczewski somewhat
differently.LIRC’s position is
this:When the claimant is “obviously
unemployable” as was the case in Balczewski, then, once the
claimant puts in his or her prima facie case, the burden shifts to the employer
to prove that jobs exist for the claimant, even with the limitations placed by
the treating physician.However, where
there is some legitimate question about whether the claimant is “obviously
unemployable,” then the burden should be on the claimant to prove that he or
she has conducted a job search and has been unable to find a job with the
physical limitations the doctor has ordered.In LIRC’s view, Balczewski was a case involving an
“obviously unemployable” person and this case is not.Thus, Balczewski is not controlling here.

¶22Still, LIRC believes that Balczewski is
nonetheless important to the holding in this case for the following
reason:the Balczewski court
relied on the Larsontreatise
in support of its decision.Larson, in LIRC’s view, suggests that
in cases involving an “obviously unemployable” person, the burden is on the
employer and in cases where it is not so obvious, the burden is on the
claimant.LIRC reasons that the supreme
court was merely following this paradigm in Balczewski but did
not delineate a difference between “obviously unemployable” situations and
those that are not obvious, for the simple reason that it did not have to do
so.LIRC posits that this case presents
that opportunity and that discussion of the burden in “not so obvious” cases is
a natural corollary to Balczewski.

¶23LIRC arrives at its theory of what Larson says by reference to the following paragraph in Larson:

The corollary of the general-purpose principle just
stated would be this:If the claimant’s
medical impairment is so limited or specialized in nature that he or she is not
obviously unemployable or relegated to the odd-lot category, it is not
unreasonable to place the burden of proof on that claimant to establish
unavailability of work to a person in his or her circumstances.This normally would require a showing that
the claimant has made reasonable efforts to secure suitable employment.The effort to seek employment will not be
deemed reasonable if the claimant places undue limitations on the kind of work
he or she will accept, including limitations not justified by the character of
the impairment.

Larson, supra, § 84.01[4].There are several problems with LIRC’s
analysis.First, the supreme court in Balczewski
never used the term “obviously unemployable” to refer to
Balczewski.Second, the supreme court
never even hinted that there was an exception to its holding that placed the
burden on the employer to show the availability of jobs after a prima facie
case had been made by the claimant that he or she was “odd lot.”Third, the section in Larson referred to by LIRC is entitled
“Burden of Proof of Work Search on Employee in Non-odd-lot Cases.”The text of the section point blank tells us
that there are those cases where the claimant’s “medical impairment is so
limited or specialized in nature that he or she is not obviously
unemployable or relegated to the odd-lot category.”Larson, supra,
§ 84.01[4].LIRC does not tell us
how Beecher’s physical problems are “so limited” or “specialized” as to take
his case out of odd-lot status.We
wonder whether the section in Larson is
even applicable to Beecher’s case.

¶24Balczewski instructs that when the claimant
produces evidence that he or she is relegated to odd-lot status and makes a
prima facie case, the burden shifts.The section of Larson
cited by Balczewski states:

If the evidence of degree of obvious physical
impairment, coupled with other factors such as claimant’s mental capacity,
education, training, or age, places claimant prima facie in the odd-lot
category, the burden should be on the employer to show that some kind of
suitable work is regularly and continuously available to the claimant.Certainly in such a case it should not be
enough to show that claimant is physically capable of performing light work,
and then round out the case for noncompensability by adding a presumption that
light work is available.

Balczewski, 76 Wis. 2d at
495 (citing Larson, supra,
§ 57.61).

¶25Balczewski pointedly fails to reference the section of Larson that LIRC urges us to
adopt.Balczewski’s
reference to one small section of the Larson
treatise does not somehow incorporate other sections of Larson nor does it muddy or blur Balczewski’s
holding.Nowhere in Balczewski
does it indicate that the claimant must show that he or she made reasonable
efforts to secure employment.In fact,
it holds the exact opposite:“[I]t is
incumbent upon the employer” to show that such special employment can be
obtained.Balczewski, 76
Wis. 2d at 494 (citation omitted).

¶26LIRC, however, erroneously imposed both steps on Beecher,
concluding that in order to meet his burden, Beecher had to both establish a
prima facie case that he was permanently and totally disabled and show that he
made reasonable efforts to secure employment.LIRC then erroneously concluded that because Beecher failed to show
reasonable efforts to secure employment, he did not make his prima facie
case.We conclude that once the
requirements of the second step are properly removed from Beecher and assigned
to his employer, as Balczewski requires, Beecher’s evidence
sufficiently establishes a prima facie case that he is permanently and totally
disabled.As noted in Balczewski:

“Total disability” ... is not to be interpreted
literally as utter and abject helplessness.Evidence that claimant has been able to earn occasional wages or perform
certain kinds of gainful work does not necessarily rule out a finding of total
disability nor require that it be reduced to partial.The task is to phrase a rule delimiting the amount and character
of work a man can be able to do without forfeiting his total disability
status.

Id.
at 493 (citation omitted).

¶27At the hearing before the ALJ, Beecher presented the following
evidence:the three reports of his
treating orthopedist, Dr. Noonan, dated September 22, 1998, April 10, 1999 and
December 14, 2000; the April 27, 1998 report of Dr. Richard K. Karr, who
examined Beecher in April 1998 and July 1998; and the December 13, 2000 report
of vocational expert Charles McReynolds, who based his report upon the results
of a November 2000 functional capacity evaluation (FCE) conducted by
occupational therapist Ruth Meehan.

¶28Outokumpu’s evidence included an August 14, 2000 and a December
2000 report from vocational expert Leanne Panizich, who also considered the
results of the November 2000 FCE, and three reports from Dr. Thomas O’Brien,
dated July 12, 1997, September 24, 1998 and May 14, 1999.

¶29LIRC found the opinions of Drs. Noonan and Karr, Beecher’s
experts, more credible and discredited the opinion and work restrictions of
Dr. O’Brien.LIRC found most
credible and adopted the work restrictions of the November 2000 FCE, which were
as follows:

standing for up to an hour at a time for a total of
four hours per day

sitting for up to an hour at a time up to four hours
per day

completing up to three flights of stairs on an
occasional basis throughout the course of an average workday

limit bilateral carrying not to exceed a maximum of 15
pounds on an occasional basis

limit bilateral lifting to a maximum of 20 pounds over
the course of an average workday

limit left arm carrying to 15 pounds and right arm
carrying to 20 pounds over an average workday

limit pushing and pulling to 14 horizontal force pounds
occasionally

LIRC found Beecher’s complaints
credible and further found that he did not invent symptoms or exaggerate his
condition.

¶30LIRC rejected the opinion of McReynolds, Beecher’s vocational
expert, only because McReynolds relied on Dr. Noonan’s part-time work
restrictions issued in March 1998.These restrictions were as follows:lifting a maximum of 10 pounds; sitting, standing and walking for a
maximum of four hours; occasional bending, stooping, crawling or kneeling; and
working a maximum of four hours for two weeks, then increase to six hours
maximum.LIRC also concluded that Dr.
Noonan did not explicitly reiterate these restrictions when he adopted the
November 2000 FCE.While Dr. Noonan did
not adopt his previous restrictions, he did in fact adopt the work restrictions
of the FCE, which are consistent with his previous restrictions.Nowhere in the FCE does it explicitly state that
Beecher can work full time.In
addition, McReynolds stated that, based upon the restrictions set forth in the
November 2000 FCE, Beecher was permanently and totally disabled.Beecher presented sufficient evidence of a
prima facie case of permanent total disability.

¶31The facts here are nearly identical to the facts of Balczewski.In Balczewski, the claimant
was a fifty-seven-year-old unskilled worker whose formal schooling was
completed in seventh grade.Id.
at 490.Her previous work history was
entirely unskilled labor and at the time of her injury, her employment involved
much heavy lifting.Id.After her injury, the claimant was
permanently unable to resume that work.Id. at 490-91.

¶32The claimant had surgery which did not restore her to
pre-accident physical condition.Id.
at 491.Her injury left her unable to
vacuum, sweep or mop, and unable to hold objects, such as a book, for more than
five minutes.Id.Even limited activities were interrupted by
rest periods and her constant pain required medication.Id.

¶33At the hearing, an employment placement expert testified that
on the basis of the claimant’s physical limitations, the claimant was not
qualified for any more industrial work and she was not qualified in her
education or experienceto perform any
type of service in a sustained or reliable manner; the claimant’s condition,
along with her age and lack of education, made any training program
inconsequential.Id. at 492.Thus, the claimant was 100% disabled for
industrial purposes and was disqualified for even sedentary jobs.Id.We concluded that prima facie proof of total disability was
adduced at the hearing.Id.
at 490.

¶34Beecher was born in July 1942 and has a ninth grade
education.He worked for Outokumpu for
twenty-nine years in strenuous employment.Beecher developed sharp pains in his lower back, leading him to seek
medical treatment in April 1997.The
pain increased over time until Beecher could no longer work.On September 10, 1997, Dr. Noonan performed
a third surgical procedure to Beecher’s lower back, a discectomy, fusion and
graft.

¶35McReynolds, a vocational expert, concluded that based upon
Beecher’s limited education, poor academic achievement and failed efforts to
obtain a GED, he was not a candidate for retraining and based upon Dr. Noonan’s
work restrictions, Beecher was permanently and totally disabled.Because the facts here are nearly indistinguishable
from the facts of Balczewski, an identical result is
compelled.

CONCLUSION

¶36By holding that Beecher failed to establish a prima facie case
because he “could have made more of an effort” to find work, LIRC subjected
Beecher to a standard that is not the law in Wisconsin.Once that constraint is removed, we conclude
that prima facie proof of total disability was adduced at the hearing.Because Beecher met his burden, Outokumpu
must be given an opportunity to rebut this evidence by showing that some kind
of suitable work is regularly and continuously available to Beecher.We therefore reverse and remand this matter
for the purpose of permitting Outokumpu to present evidence, if any it has, in
rebuttal of Beecher’s prima facie case.

By
the Court.—Order reversed and cause remanded.

[1] While
Beecher’s factual discussion does provide citations to documents in the record,
he does not utilize the numerical references provided in the circuit court’s
compilation of the record.The State takes
issue with many of Beecher’s facts and does provide its own factual recitation;
however, citations to the record using the numerical references provided in the
record are minimal.Such failure is a
violation of Wis. Stat. Rule
809.19(1)(d) and (3) of the rules of appellate procedure, which requires
parties to set out facts “relevant to the issues presented for review, with
appropriate references to the record.”(Emphasis added.)An appellate
court is improperly burdened where briefs fail to consistently and accurately
cite to the record. Meyer v.
Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957).

[2] All
references to the Wisconsin Statutes are to the 2001-02 version unless
otherwise noted.